Intellectual Property and Technology Law Practice
This advisory was prepared by Jenner & Block’s Intellectual Property and Technology
Law Practice for the Information Technology Law & Ecommerce Committee of the
Association of Corporate Counsel.
September 2004
“Trespass to Chattels” Finds New Life
In Battle Against Spam
by Daniel J. Schwartz and Joseph F. Marinelli
Daniel J. Schwartz
is a partner at
Jenner & Block and a
member of the Firm’s
Intellectual Property
and Technology Law,
and Litigation Practices.
His practice includes
patent, trade secret and
trademark litigation.
Mr. Schwartz also
counsels clients
concerning patent,
trademark and trade
secret strategy. He
received a bachelor’s
degree in Mechanical
Engineering from
Northwestern
University and his J.D.
from Northwestern
University Law School.
He co-teaches a course
in intellectual property
litigation at Loyola
University Law School
in Chicago.
We have all had the experience—you return
to your office after a long weekend away
and spend the first hour of your day
deleting junk e-mails soliciting anything from
a new dental plan to prescription drugs.
These junk e-mails, commonly referred to as
spam, clog Internet service provider (“ISP”)
and corporate networks everyday. Internet
service providers and most corporations
utilize special filtering software to block
spam from entering users’ inboxes. Still,
spammers manage to penetrate these filter,
and users are left sifting through the spam
to locate important e-mails.
Internet service providers and
corporations have taken this high-tech
problem to the courts, and the most lowtech of players, the century-old tort of
trespass to chattels, has emerged as a
viable weapon against spam. Trespass to
chattels occurs when “one party
intentionally uses or intermeddles with
personal property in rightful possession of
another without authorization.”
Restatement (Second) of Torts § 217(b).
One who commits trespass to chattels is
liable to the possessor of the chattel if the
chattel is impaired as to its “condition,
quality, or value.” Id. Despite its arcane
tone, ISPs and corporations have used
this tort theory to stop spammers in several
states.
In Virginia, American Online, Inc. has been
successful in asserting trespass to chattels
against a number of spammers. In
American Online v. National Health Care
Discount, Inc., 174 F.Supp. 2d 890 (N.D.
Iowa 2001), an Iowa district court applying
Virginia tort law granted summary judgment
on AOL’s behalf holding that National
Health Care Discount, Inc. trespassed on
AOL’s computer systems by sending 276
million e-mail messages to AOL members.
The court granted AOL $337,500 in actual
damages and $100,000 in punitive
damages, and permanently enjoined
National Health Care Discount, Inc. from
sending e-mail to AOL members. AOL’s
trespass to chattels claims against other
spammers in Virginia have been equally
successful. See American Online, Inc. v.
LCGM, Inc. et al., 46 F.Supp 2d 444 (E.D.
Va. 1998), American Online, Inc. v. Prime
Data systems, Inc. et al., 1998 U.S. Dist.
LEXIS 20226 (E.D. Va. 1998), American
Online, Inc. v. IMS et al., 24 F. Supp. 2d
548 (E.D. Va. 1998).
In EarthLink, Inc. v. Carmack, 2003 U.S.
Dist. LEXIS 9963 (N.D. Ga. May 7, 2003), a
Georgia district court awarded EarthLink
Joseph F. Marinelli
is an associate at
Jenner & Block and a
member of the Firm’s
Intellectual Property
and Technology Law
Practice. His practice
focuses on patent and
trademark litigation
and prosecution,
licensing, and
intellectual property
counseling. He is a
registered U.S. patent
attorney. He received
his bachelor’s degree
in Mechanical
Engineering from
Purdue University in
1996 and his J.D.
from the University of
Wisconsin.
over $16 million in actual and
punitive damages against
Howard Carmack for trespass
to chattels and violations of
other state and federal laws.
Carmack engaged in a
massive spamming campaign,
sending an estimated 857.5
million e-mails, which the court
deemed as trespass to
EarthLink’s service provider
system. The court stated that
the substantial award was “to
serve a clear message and
warning to Carmack and all
other similarly-situated
wrongdoers that such crime
and misconduct will not be
tolerated.”
Spam as trespass to chattels
has been recognized by courts
in New York and Ohio as well.
In Tyco International (US) Inc.
v. Doe, 2003 U.S. Dist. LEXIS
25136 (S.D.N.Y. Aug. 29,
2003), Tyco was awarded only
$1 in compensatory damages,
but also awarded $10,000 in
punitive damages by a New York district court
against an individual who had attempted to
overload Tyco’s e-mail server with 30,000 e-mail
messages. The compensatory damage award was
nominal because Tyco failed to adequately set forth
its actual losses. In CompuServe Inc. v. Cyber
Promotions, Inc., et al., 962 F. Supp. 1015 (S.D.
Ohio 1997) an Ohio district court granted
CompuServe a preliminary injunction against
spammers who sent e-mails to CompuServe
subscribers. The court found that even though
CompuServe’s servers were not physically
damaged, their value was diminished by the spam
which consumed disk space and processing
capacity that would have otherwise been available
to CompuServe’s subscribers. The court found
that even though CompuServe’s e-mail service
allows subscribers to receive messages from
anyone on the Internet, the spammers were
specifically warned against using CompuServe’s
equipment to send their spam messages.
While trespass to chattels has been successfully
asserted in several spam cases, at least one court
has denied the claim. In Intel Corp. v. Hamidi, 30
Cal.4th 1342 (Cal. 2003), the California Supreme
Court held that under California law, the tort of
trespass to chattels did not encompass an
electronic communication that neither damaged
the recipient computer system nor impaired its
functioning. The court in Hamidi did not rule out
trespass to chattels altogether as a cause of
action. It simply illustrated its boundaries and
found that Intel was outside those boundaries.
In that case, Hamidi, a former employee of Intel,
sent six different e-mail messages, each to as
many as 35,000 Intel employees over a period of
two years. The e-mails criticized Intel’s
employment practices, warned recipient
employees of the dangers those practices posed
to their careers and suggested employees
consider moving to other companies. Hamidi
breached no computer security barriers in order to
send the e-mails, and he offered to, and did,
remove from his mailing list any recipient who so
requested. Intel’s efforts at blocking the
transmission of the messages were only partly
successful. Intel demanded that Hamidi stop
sending the e-mails, but Hamidi persisted.
The California Supreme Court ruled that without any
evidence that Hamidi’s actions caused or threatened
to cause damage to Intel’s computer system, Intel
was not entitled to an injunction as a matter of law.
Looking to earlier California law and the
Restatement (Second) of Torts § 218, the court
stated that trespass to chattels required some injury
or damage occur to the property. An e-mail that
neither damages the recipient computer system nor
impairs its functioning is not a trespass because
such an e-mail does not interfere with the
possessor’s use or possession of the personal
property itself. Analyzing the facts under this
framework, the court found that there was no
evidence indicating that Intel’s computer
infrastructure or software was actually damaged or
even threatened to be damaged. Intel was not
2
dispossessed of its computers. Hamidi’s messages
did not prevent Intel from using its computers for any
appreciable length of time. Intel also failed to prove
that its system was slowed by the influx of Hamidi’s
messages or that the messages imposed any
marginal operation cost on Intel.
The court distinguished Intel’s situation from those
cases discussed above like CompuServe, Inc. v.
Cyber Promotions, Inc. in which spamming was
found to be actionable trespass. In each of those
spamming cases, the plaintiff showed some
interference, or threat of interference, with the
efficient functioning of its computer system.
Compuserve, for example, presented evidence that
the defendant’s mass e-mails placed a “tremendous
burden” on CompuServe’s equipment by using disk
space and draining processing power, leaving those
resources unavailable for subscribers.
The burden on Intel’s computer system caused by
Hamidi’s e-mails did not in the court’s mind measure
up to the burden or threat of burden proven in cases
like CompuServe. The court recognized that although
Hamidi sent thousands of e-mails, the burden on
Intel’s computer system was incomparable to the
burden caused by spam to an ISP like CompuServe.
While trespass to chattels is a formidable weapon
for ISP’s and corporations against spam, Hamidi
reminds us that it has its boundaries. The one thing
Hamidi makes clear — before deciding to bring a
trespass to chattels claim, a party must consider the
evidence of damage or impairment inflicted by a
mass e-mail campaign and how to present that
evidence to the court.
For more information, please contact any of the following Jenner & Block attorneys:
Raymond N. Nimrod
Adam Petravicius
Daniel J. Schwartz
rnimrod@jenner.com
adamp@jenner.com
djschwartz@jenner.com
All attorneys may be contacted by phone at 312 222-9350
©Copyright 2004 Jenner & Block LLP. Jenner & Block is an Illinois Limited Liability Partnership including professional corporations. This publication is not intended to provide legal
advice but to provide information on legal matters and Firm news of interest to our clients and colleagues. Readers should seek specific legal advice before taking any action with
respect to matters mentioned in this publication. Under professional rules, this publication may be considered advertising material; the attorney responsible for this publication is Daniel
J. Schwartz. Cover image from the Collection of the Supreme Court of the United States.
3